Wu and Tsiang

[2019] FamCA 988

FAMILY COURT OF AUSTRALIA

WU & TSIANG [2019] FamCA 988

FAMILY LAW – PRACTICE AND PROCEDURE – Where an Application in a Case seeking costs in the first instance was rejected for filing – Where the Application was rejected due to a delay in its filing – Where the Application against which costs were first sought was subject to an appeal – Where determination of costs at the first instance was delayed due to the appeal – Order for the Application in a Case be accepted for filing.

Family Law Act 1975 (Cth) Family Law Rules 2004 rr 19.08, 24.10(1)(d)
APPLICANT:	Mr Wu

RESPONDENT: Mr Tsiang

FILE NUMBER: SYC 1529 of 2016

DATE DELIVERED: 15 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

DEALT WITH IN CHAMBERS: 15 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Juris Cor Legal

SOLICITOR FOR THE RESPONDENT: Mills Oakley

Orders

1. The Application in a Case of Ms Wu dated approximately 16 October 2019 is accepted for filing and listed before me in chambers for directions on 30 November 2019.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tsiang & Wu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1529 of 2016

Mr Wu

Applicant

And

Mr Tsiang

Respondent

REASONS FOR JUDGMENT

The proceedings

1. On 29 October 2019 Mr Wu submitted an Application in a Case for filing.  This Application in a Case sought the following Orders:

   1.That the decision made by the registrar on 29 October 2019 under rule 24.10(1)(d) of the Family Law Rules 2004 to reject the Application in a case filed by Mr Wu on 16 October 2019 be set aside.

   2.That the court accepts the filing of the Application in a case filed by Mr Wu and the affidavit affirmed by Mr Wu on 16 October 2019.

   3.In the alternative to order 2 sought, the matter be listed to determine if leave ought to be granted to Mr. Wu to bring an application for costs out of time.

1. Mr Wu's Application in a Case named as respondent Mr Tsiang.  Mr Wu and Mr Tsiang were parties to proceedings which also involved Ms Wu.  Mr Tsiang ("the husband") and Ms Wu ("the wife") were married in 2000 and divorced in 2017.  Mr Wu is the father of Ms Wu.

2. On 26 November 2018 I heard applications by the husband for various interim injunctive orders against the wife and Mr Wu, who is her father.  A third respondent, Mr Cao, an uncle of the wife, had not been served at the time of this hearing.

3. Mr Wu filed a Response to Application in a Case on 16 November 2018.  He sought a dismissal of the husband's application for injunctive orders which would operate against him, in respect of certain commercial entities in China.  Mr Wu also sought an order that the husband pay his costs on an indemnity basis.  Mr Wu was represented by senior counsel at the interim hearing on 28 November 2018.

4. I declined to make any injunctive orders against Mr Wu.  This outcome was upheld on appeal, by way of a judgment delivered on 31 July 2019.  The Full Court ordered that the husband pay Mr Wu's costs in the appeal.

5. On 16 October 2019 Mr Wu sought to file an Application in a Case, whereby paragraph 2 of his Response to Application in a Case of 16 November 2018 would be listed for hearing.  That application is for an order that the husband pay Mr Wu's costs incurred at first instance on an indemnity basis.  A Registrar rejected this Application in a Case in reliance on Rule 24.10.  I infer that the basis of this rejection was Rule 19.08(2), which provides that a costs application should be made within 28 days of the date of a final order.

Consideration and conclusion

1. In my view, Mr Wu's Application in a Case was erroneously rejected for filing.  As noted, he sought an order for costs against the husband in his Response to Application in a Case filed on 16 November 2018.  He did no more than seek to agitate this application in October 2019.

2. As noted, Mr Wu was wholly successful in the appellate proceedings and obtained an order for costs against the husband.  I see no reason at all why he should now be prevented from pursuing his costs at first instance.  I will direct that Mr Wu's application for costs be listed before me for mention and directions in chambers on 29 November 2019.  On that date I will make directions for the filing of relevant material, following which I will make a determination in chambers on the papers.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 15 November 2019.

Associate:

Date:  15 November 2019